Nunavut Justice Issues: An Annotated Bibliography

4.  Annotated Bibliography (continued)

Bayly, John U.  “Unilingual Aboriginal Jurors in a Euro-Canadian Criminal Justice System”, in Aboriginal Peoples and Canadian Criminal Justice Vanvouver: Butterworths Canada Ltd., 1992.

This article provides an overview of the challenges surrounding language and community participation regarding jury trials in the Northwest Territories. These are challenges that will have to be overcome if Northern communities choose to have trials by jury.  The Territorial government of Nunavut will have to take these lessons learned and attempt to incorporate alternative ways of doing things to adequately address the limitations in the system as it exists for communities.  Specifically, the importance of investing in trained interpreters - not just for the jury system- but for the whole justice system is introduced.  However, the article does not challenge the form of juries or question the assumptions of utilizing formal juries, as they are practiced in the justice system, within Aboriginal communities.  Perhaps the principles would be the same between a community decision-making process and a jury - but the form is ultimately very different.  Instead, the author addresses the language issue and the limited role that juries can play in communities where there is a large unilingual population.  This article speaks to lessons learned and the Northern environment.

General Overview

This article was prepared for the VI International Symposium, Commission on Folk Law and Legal Pluralism in 1990.  The author addresses the impact that the language requirements for a jury trial in Canada have on unilingual (Inuktitut only) residents in the North.  Prior to the Act to Amend the Jury Act in 1989, jury members had to be fluent in one of the official languages - English or French.  The author examines how that requirement restricted the inclusion of unilingual community members on juries.  He also examines the failure of that Act to have any significant change since there is (1) a lack of community desire to participate as jurors and (2) the government has failed to ensure administrative preparedness.  Through his analysis a number of important points are brought to the fore regarding language and the administration of justice.

Underlying Themes

  • Jury trials are desirous and effective in Aboriginal communities.
  • Juries work in situations where the jury members know the accused and the victim.
  • Juries are important because they represent community values.
  • Unilingual Aboriginal community members should not be excluded from the jury process and the problems confronting unilingual jury members can be overcome.

Findings

Historical right to trial by jury: The author spends a fair amount of time examining the historical right to a jury trial.  He discusses the importance and legal principles behind being judged by ones peers through history and up to the present entrenchment of section 11(f) of the Canadian Charter of Rights and Freedoms

Requirement that a juror be proficient in the official language of the trial: Prior to the 1989 enactment of the Act to Amend the Jury Act, this requirement severely limited a large segment of the (Northern) community’s population from taking part in a jury trial.  Specifically, it has left many Elders ineligible for jury duty.  This, the author states, is a problem because these are the very people that should be represented.  Elders play a large role in decision-making in the community and by excluding them customary law is being further marginalized.

The passing of the Act to Amend the Jury Act in 1989: This Act, passed, in 1986 was intended to change the situation in the Northwest Territories, where many community members are excluded from participating as jurors in their community because of the language requirement. The Jury Act was amended to include a new section that stated that if the individual speaks neither French nor English, but does speak and understand an aboriginal language as defined in the Official Languages Act, that they will not be excluded from participating on a jury based on language.  As a result, those formerly disqualified may be eligible jurors.

Post 1989 enactment - furtherlimitations - lack of community support and administrative difficulties: After the Jury Act was enacteda number of difficulties emerged.  First, large numbers of community members did not want to be jurors.  They would inform the court that they could not participate due to infirmity or deafness, because they are relatives or friends of the accused or victim, or that they have children to care for at home.  While the Jury Act removed the inability to speak English as a reason to be excused from jury duty, community members responded by advancing others.  The author holds that this is the result of the undesirable nature of jury duty, generally, for most Canadians (as a boring, long, and foreign process), but that it is especially difficult to act as a juror in a small community. Administrative difficulties were also experienced.  The amendment to the Jury Act presupposed the availability of interpreters - both familiar with the language as well as how to describe legal concepts and terms to the accused.  They are rare in the Northwest Territories, and there were not enough at the time of the enactment to meet the need that would adequately incorporate the unilingual jurors. At the time of the writing of this article, the author notes that because of the lack of administrative preparedness and unavailability of interpreters, it was back to a situation where venues were changed and unilingual community members were excluded.

Addressing these issues in the courts: The courts have been left with having to find ways to address the limitations placed upon incorporating unilingual jurors.  For example, the author points out that in one case, where a legal interpreter was not available, the Crown and defense agreed not to oppose the excusing of unilingual jury panel members.

Conclusions

A number of issues will have to examined if jury trials are to take place in Northern Inuit communities where there are a large number of unilingual Aboriginal peoples:

  • The main issue is of training interpreters.  Sufficiently trained and experienced interpreters are needed, and as of the writing of this article, were not available.
  • Lawyers and judges will have to learn to work effectively with interpreters.  For example, they will have to use language and syntax that can be easily translated.
  • It is unclear what may happen in a case where the defendant insists on his right to select a jury from a panel that includes unilingual aboriginal panelists where qualified interpreters are not available.
  • At the close of trial, should the interpreter be allowed to go into the deliberation room to assist the unilingual jurors, even though by law these deliberations are to be done in secret?
  • The issue of time: the proceedings in a mixed jury will take much longer.  If these types of trials become more frequent, an expansion of the courts may be necessary to accommodate them.

Brier, Heidi, Agnes Krantz, and Douglas Miller. “The Relevance of Community Legal Service Centres”, in Self-Sufficiency in Northern Justice Issues Burnaby: Northern Justice Society, Simon Fraser University, 1992.

This article, part of a workshop compendium, highlights the important role that community legal centres play in the Northwest Territories and in small, isolated Northern communities.  The participants held that while the Euro-Canadian criminal justice system is in place, these centres provide an invaluable resource to the community.  They assist in interpretation, they explain the justice/legal process and attempt to ensure community resident(s) know their legal rights.  However, there are a number of challenges that limit their effectiveness to Northern residents.  Specifically addresses are lessons learned, the Northern environment and the relationship with the mainstream criminal justice system.

General Overview

This article is a part of a larger collection that addresses the potential for criminal justice self-sufficiency in the North and some of the strategies that communities can use to facilitate it.  The participants are often front-line community workers and through their dialogue and commentaries some of the important issues on the topic are uncovered. The discussion is led by a resource person(s) and the information they provide is often not scripted, but spontaneous discussion and sharing of experiences.

This workshop describes the community legal services in the Northwest Territories and the role they play.  The participants represented both Inuit and non-Inuit legal aid services.  After outlining what the present situation of community legal services was- (the roles they may play and the challenges they face in three Northern communities), the focus turned to what an ideal legal service centre would like.  Through the discussion many issues about community legal services in the North were examined and many conclusions can be drawn for incorporation of such services in Nunavut.

Heidi Breier (Executive Director, Arctic Rim Law Centre, Tuktoyuktuk, NWT), Agnes Krantz (Lawyer/Director, Keewatin Legal Services Society, Rankin Inlet, NWT) and Douglas Miller (Executive Director, Legal Services Board of the NWT, Yellowknife), were resources persons for this workshop.

Underlying Themes from the Dialogue

  • Regardless of the justice initiatives that are being developed or implemented, there is a need for communities to be aware of their rights and responsibilities within the Canadian justice system that surrounds them.  As a result, community legal service centres play an important role in sharing that information by acting as a tool and a resource for communities and individuals.
  • The unique nature of the Northwest Territories environment, such as its size and vast distances, as well as the cultural and ethnic differences that it represents are all issues that must be identified and addressed when forming a community legal service centre.  This is especially necessary when forming an umbrella group that oversees the many community legal services organizations that may exist in the future.
  • Community legal service centres intend to represent the community.  However, those that operate the centre may often not be from the community.  As a result, legal service organizations must take their direction from the community to ensure community-level representation.
  • A tension exists regarding the desirability of community legal service centres.  Some participants pointed out that it may be seen as a ‘tool’ of the dominant legal justice system and that in the face of growing support for traditional, fundamentally different justice initiatives, individuals and organizations may be better served committing their financial and personal resources to other alternative community-based that may better address the justice needs of the community.

Findings

Community legal service centres play an important role (and perform many functions) in the administration of criminal justice in the North: The main goal of the community legal service centre is not to intrude or force a particular vision or way of doing things, but to serve the community.  They ensure that individuals in Northern communities have access to their legal rights.  Also, there are serious and wide-ranging problems facing Northern residents: high levels of violence and property crime, drug and alcohol abuse, low education and employment levels.  For many communities, a community legal service centre, as part of an infrastructure, can act as a source and base for changing this situation through their role as a resource, providing referrals and appropriate references for individuals in the community. Many individuals in Northern communities do not speak English or French, or one of these is their second language.  There are few, if any, bilingual lawyers in the Northwest Territories, that are able to speak Inuktitut and French or English.  As a result, interpreters are often needed by the community to explain the process and better represent their needs to the court.  Court workers, as part of the community legal service infrastructure, act as interpreters for the members of the court and the community so that those who are subject to the court and those that control the court have a better understanding of each other.

Role of the community: The participants indicated that the establishment of community legal service centres must originate from the community.  The community is responsible for requesting a community legal centre and then for guiding its roles and its work within the community once it is there.  Such a community-based focus is part of the mandate of the community legal centres.

Challenges of community legal service centres in the Northwest Territories: The community legal service centres in the Northwest Territories face many challenges.  Many communities have a low level of interest on the part of community residents. Since the community has to support and request a legal service centre, low support will limit its effectiveness to address the justice needs of the community.  Another challenge is the impact that the large demand for assistance in criminal matters has.  As a result of the pressing and urgent nature of the criminal matters in the community, the centres are unable to address the civil matters that their mandate requires them to.  Finally, there is not enough funding and resources to do all the things within their mandate.

Suggestions: What would an ideal community legal service centre look like?  According to the participants in this workshop, the ideal community legal service centre would have a number of elements.  It would have an independent board of directors that would ensure that a community-based focus is developed and maintained through community input.  It would have enough lawyers so that proper and appropriate attention can be paid to civil and criminal representation.  It would see the role of the Court worker expanded and supported in a number of ways.  Court workers would be given more appropriate training and enlarged responsibility.  There would be a shift to addressing Aboriginal justice issues, made possible through more specialized resources for information and a broader funding base. This would represent a shift from addressing ‘Native peoples and justice’ to addressing ‘Native justice issues’.  Finally, legal education would be an important part of its activities so that community members and Northern residents would have more information about how the justice system works.

Date modified: